An Act to subject lithium mining operations to certain provisions regarding permitting, annual reporting, disturbed land limitations, and mined land reclamation.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 45-6-65 be AMENDED:

45-6-65. An operator shall obtain a license to mine:

(1) Sand;

(2) Gravel;

(3) Rock to be crushed and used in construction;

(4) Pegmatite minerals for purposes other than to extract lithium;

(5) Limestone; and

(6) Iron ore, gypsum, shale, pozzolan, and other materials used in the process of making cement or lime.

The operator shall comply with the requirements of §§ 45-6-68, 45-6-69, 45-6-71, and 45-6-72, for each site to be mined. Failure to comply with these requirements for each site mined constitutes mining without a license.

The fee for the license is one hundred dollars annually, for each mine site authorized under the license. The department shall forward any fees collected under this section to the state treasurer for deposit in the environment and natural resources fee fund established in § 1-41-23.

Section 2. That § 45-6B-3 be AMENDED:

45-6B-3. Terms used in this chapter mean:

(1) "Abandoned mined lands," lands that were mined for noncoal minerals and materials and for which there is no continuing reclamation responsibility or responsibility for other remedial action under state or federal laws;

(2) "Affected land," land from which overburden is to be or has been removed and land upon which overburden, waste rock, mine spoil, or mill tailings is to be or has been deposited; land which is disturbed by the building of access roads, railroad loops, warehouses, storage areas, or other support facilities for the purpose of mining or milling; and land affected by surface subsidence, unstable slopes, and other surface effects caused by underground mine workings;

(3) "Aquifer," a water‑bearing bed or stratum of permeable rock, sand, or gravel capable of yielding usable quantities of water to wells or springs;

(4) "Black Hills," Lawrence County south of Interstate Highway 90, Meade County west and south of Interstate Highway 90 and Pennington and Custer Counties west of South Dakota Highway 79;

(5) "Board," the Board of Minerals and Environment;

(6) "Department," the Department of Environment Agriculture and Natural Resources;

(7) "Development," the work performed in relation to a deposit, following the exploration required to prove minerals are in existence in commercial quantities but before production activities, aimed at preparing the site for mining, defining further the ore deposit by drilling or other means, conducting pilot plant operations, constructing roads or ancillary facilities;

(8) "Life of the mine permit," a permit to conduct a mining operation which is in effect if:

(a) An operator continues to engage in the extraction of minerals and complies with the provisions of this chapter;

(b) Mineral reserves are shown by the operator to remain in the mining operation and the operator plans to, or does, temporarily cease production for one hundred eighty days or more if the operator files a notice thereof with the board stating the reasons for nonproduction, a plan for ceasing production for one hundred eighty days or more if the operator files a notice thereof with the board stating the reasons for nonproduction, a plan for the resumption of production, and the measures taken to comply with reclamation and other necessary activities as established by the board to maintain the mine in a nonproducing state. The requirement of a notice of temporary cessation does not apply to operators who resume operating within one year and have included, in their permit applications, a statement following the exploration required to prove minerals are in existence in that the affected lands are to be used for less than one hundred eighty days per year;

(c) Production is resumed within five years of the date production ended, or the operator files a report requesting an extension of the period of temporary cessation of production with the board stating the reasons for the continuation of nonproduction and those factors necessary to, and the operator's plans for, resumption of production. A temporary cessation of production may not be continued for more than ten years without terminating the operation and fully complying with the reclamation requirements of this chapter.

A life of the mine permit includes that period of time after cessation of production necessary to complete reclamation of affected lands, until the board releases, in writing, the operator from further reclamation obligations regarding the affected land, declares the mining operation terminated, and releases the surety thereon;

(9) "Milling," the beneficiation of a mined material from its natural occurrence in ore;

(10) "Mineral," a substance with economic value, whether organic or inorganic, that can be extracted from the earth, other than the following: water, oil, gas, sand, gravel, or rock to be crushed and used in construction,; pegmatite minerals mined for purposes other than to extract lithium,; or limestone, sand, gypsum, shale, or iron ore used in the process of making cement;

(11) "Mining operation," the development or extraction of a mineral from its natural occurrence on affected land. The term includes surface mining and surface operation, in situ mining, the reprocessing of tailings piles, the disposal of refuse from underground mining, milling and processing located on the land described in the application for a mining permit, and stand-alone milling and processing facilities utilizing chemical or biological leaching agents. The term does not include extraction of sand, gravel, or rock to be crushed and used in construction, exploration activities, bulk sampling, the exploration and extraction of natural petroleum in a liquid or gaseous state by means of wells or pipe, borrow excavation for embankments, or the extraction of geothermal resources;

(12) "Operator," any person, firm, partnership, limited liability company, association, or corporation or any department, division or agency of federal, state, county, or municipal government engaged in or controlling a mining operation;

(13) "Overburden," all of the earth and other materials which are disturbed or removed, in the original state, or as it exists after removal from its natural state in the process of surface mining;

(14) "Reclamation," the employment during and after a mining operation of procedures reasonably designed to minimize as much as practicable the disruption from the mining operation and to provide for the rehabilitation of affected land through the rehabilitation of plant cover, soil stability, water resources, or other measures appropriate to the subsequent beneficial use of such mined and reclaimed lands;

(15) "Surface mining," the mining of minerals by removing the overburden lying above such deposits and mining directly from the deposits thereby exposed. The term includes mining directly from such deposits where there is no overburden and such practices as open cut mining, open pit mining, strip mining, placer mining, quarrying, and dredging;

(16) "Surface mining disturbed land," land from which overburden has been removed, land upon which overburden, waste rock, mine spoil, or mill tailings have been deposited, land mined which has no overburden, heap leach pads, and process ponds; and

(17) "Tailings," the discharged valueless product of a beneficiation process.

Section 3. That § 45-6B-87 be AMENDED:

45-6B-87. Nothing in this chapter relieves the holder of any large-scale gold or silver surface mining permit, or lithium mining operation permit, from any of the requirements of the Clean Air Act of 1955, as amended to 42 U.S.C. § 7401, et seq. (January 1, 2011), the Clean Water Act of 1977, as amended to 33 U.S.C. § 1251, et seq. (January 1, 2011, the South Dakota Air Quality Act (chapter 34A-1), the Federal Water Pollution Control Act of 1972, as amended to( January 1, 2011), the Safe Drinking Water Act (P.L. 93-523), as amended to, 42 U.S.C. § 300f, et seq. (January 1, 2011), the Mine Safety and Health Administration regulations (, 30 C.F.R. Part 3830), as amended to, (January 1, 2011), the United States Forest Service surface mining and exploration reclamation requirements (, 43 C.F.R. Part 23, and 36 C.F.R. page Part 228), as amended to, (January 1, 2011), Bureau of Land Management mining and exploration requirements (, 43 C.F.R. Part 3800), as amended to( January 1, 2011), the Mined Land Reclamation Act (this chapter), the regulated substance discharges statutes in chapter 34A-12, the Resource Conservation and Recovery Act of 1976, as amended to 42 U.S.C. § 6901, et seq. (January 1, 2011), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (P.L. 95-510), as amended to 42 U.S.C. § 9601, et seq. (January 1, 2011), the Toxic Substance Control Act of 1976 (P.L. 94-469), as amended to 15 U.S.C. § 2601, et seq. (January 1, 2011), Lawrence County extractive industries ordinances, as amended to (January 1, 2011), and all rules and regulations promulgated to implement existing statutes, including rules dealing with air pollution, control of visible emissions, open burning, control of particulate emissions, control of sulfur compound emissions, new source performance standards, standards of performance for storage vessels of petroleum liquids, air standards, spill control plans, buried tanks, water pollution, public water systems, and dredge and fill permit requirements.

Section 4. That § 45-6B-93 be AMENDED:

45-6B-93. Any operator of a large-scale gold or silver surface mining operation, or a lithium mining operation, shall submit an annual report by January first of each year, including and provide an oral presentation to the Board of Minerals and Environment explaining the information in the written annual report. The annual report shall include the following information must contain:

(1) The total and previous year's amount of affected land;

(2) The total and previous year's amount of surface mining disturbed land;

(3) The total and previous year's amount of land that has undergone interim reclamation;

(4) The total and previous year's amount of land that has undergone final reclamation and which meets the required post-mining land use;

(5) The total and previous year's amount of land that has undergone final reclamation but which does not meet the required post-mining land use;

(6) The total amount of groundwater withdrawn during the previous year;

(7) The total amount of surface water withdrawn during the previous year;

(8) The total amount of ore mined during the previous year;

(9) The total amount of ore processed during the previous year;

(10) The total amount of waste rock mined during the previous year;

(11) The total amount of gold and silver produced, or in the case of a lithium mine, the amount of lithium produced, during the previous year;

(12) The total amount of cyanide used during the previous year; and

(13) A brief discussion of the coming year's operational plans, including any anticipated revisions that might require department or board approval.

Section 5. That § 45-6B-95 be AMENDED:

45-6B-95. The board may not issue a permit for a new large‑scale gold or silver surface mining operation, or for a new lithium mining operation, if the proposed surface mining disturbed lands under that permit shall exceed exceed three hundred twenty acres. Nor may the The board may not issue new permits or amendments to existing permits for new large‑scale gold or silver surface mining operations, or for a new lithium mining operation, for expanded acres of surface mining disturbed lands, until reclamation has been performed in accord accordance with § 45-6B-97.

Section 6. That § 45-6B-96 be AMENDED:

45-6B-96. The board may not issue new permits to or amendments to existing permits for presently operating large-scale gold or silver surface mining operations, or for a presently operating lithium mining operation, for expanded acres of surface mining disturbed lands, until reclamation has been performed in accord accordance with § 45-6B-97, except that presently operating large-scale gold or silver surface mining operations are not subject to this provision until the permitted acres of surface mining disturbed lands total two hundred acres more per each individual permit than its permitted surface mining disturbed land total acreage as of January 1, 1992.

Section 7. That § 45-6B-97 be AMENDED:

45-6B-97. New permits or amendments to existing permits for expanded acres of surface mining disturbed land for operations referred to in §§ 45-6B-95 and 45-6B-96 may be issued only if the applicant has performed reclamation on an equal number of acres of permitted affected land, or has agreed not to disturb an equal acreage of permitted affected land, or, with consent of the board, has performed or agrees to perform reclamation concurrently with disturbance of an equal number of acres of previously mined land inside or outside a permit area boundary. For the purpose of §§ 45-6B-94 to 45-6B-99, inclusive only, reclamation is performed when the operator completes required grading, topsoil replacement, erosion, and drainage control and any required planting and seeding that the department finds meets the requirements of the approved reclamation plan. To qualify for reclamation credit, reclamation activities shall must have been conducted after the operator was granted the original large‑scale gold or silver surface mining permit, or lithium mining operation permit, and surety for the reclaimed acres of affected land shall must not have been released prior to November 19, 1992. With consent of the board, a large‑scale gold or silver surface mining, or lithium mining, operator may assign reclamation credit acreage to another large‑scale gold or silver surface mining operator or lithium mining operator.